INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- KIGHTLY [2005] WASCA 154
| (2005) 30 WAR 380 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 154 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:17/2004 | 9 MAY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 15/08/05 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | INSURANCE COMMISSION OF WESTERN AUSTRALIA PAUL KIGHTLY |
Catchwords: | Insurance Doctrine of subrogation Respondent injured during training course and paid $70,557.30 by appellant insurer Respondent then received $145,000, plus costs under consent judgment by settlement deed against tortfeasor Appellant insurer sued respondent for repayment of $70,557.30, either under terms of the insurance policy or under doctrine of subrogation Equitable nature of doctrine of subrogation What insurance policies doctrine of subrogation may apply to Whether personal accident insurance policy was an indemnity policy or contingency policy Whether payment by consent judgment constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated |
Legislation: | Insurance Contracts Act 1984 (Cth), s 48(2) |
Case References: | AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655 Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335 Blaauwpot v Da Costa (1758) 1 Ed 130; 28 ER 633 Boag v Standard Marine Insurance Co Ltd [1937] 2 KB 113 Bradburn v The Great Western Railway Company (1874) LR 10 Ex 1 British Traders' Insurance Co Ltd v Monson (1964) 111 CLR 86 Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333 Castellain v Preston (1883) 11 QBD 380 Commercial Union Assurance Co v Lister LR (1874) 9 Ch App 483 Dalby v The India and London Life-Assurance Co (1854) 15 CB 365 Dufourcet & Co v Bishop (1886) 18 QBD 373 Gibson v Sun Life Assurance Co of Canada (1984) 6 DLR (4th) 746 Glynn v Scottish Union & National Insurance Co Ltd (1963) 40 DLR (2d) 929 Gould v Curtis [1913] 3 KB 84 Guthrie House Ltd v Cornhill Insurance Co Ltd (1982) 2 ANZ Ins Cas 60-466 Horse, Carriage and General Insurance Co (Ltd) v Petch (1916) 33 TLR 131 Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541 In re TH Knitwear (Wholesale) Ltd [1988] 2 WLR 276 Insurance Commission of Western Australia v Kightly [2004] WADC 5 John Edwards and Company v Motor Union Insurance Company Ltd (1922) 2 KB 249 Levesque v Co-operative Fire & Casualty Co (1976) 68 DLR (3d) 553 McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1987) 11 NSWLR 189 Napier v Hunter [1993] AC 713 Orakpo v Manson Investments Ltd [1978] AC 95 Orion Insurance Co Ltd v Hicks (1972) 32 DLR (3d) 256 Phoenix Assurance Co Ltd v Spooner [1905] 2 KB 753 Randal v Cockran (1748) 1 Ves Sen 98 Re Palmdale Insurance Ltd (In liq) (No 3) [1986] VR… |
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Details
- Case
- [2005] WASCA 154
- Decision Date
CaseChat Overview and Summary
The matter of Insurance Commission (WA) v Kightly involved a dispute between the Insurance Commission of Western Australia, the appellant, and the respondent, Kightly. The respondent was injured during a training course and had received compensation of $70,557.30 from the appellant, an insurer. Subsequently, the respondent settled with the tortfeasor for $145,000, plus costs, under a consent judgment. The appellant sought repayment of the $70,557.30 from the respondent, either under the terms of the insurance policy or through the doctrine of subrogation. The court was required to determine the equitable nature of the doctrine of subrogation, what types of insurance policies the doctrine could apply to, and whether the payment by consent judgment was a "payment by way of benevolence" or an "ex gratia payment" that could not be subrogated.
The court examined the nature of the insurance policy and whether it was an indemnity policy or a contingency policy, which would determine the applicability of the doctrine of subrogation. It was established that the doctrine of subrogation could apply to both indemnity and contingency policies. The court further analysed the payment by consent judgment to determine if it constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. The court held that the payment by consent judgment did not fit either of these categories, and therefore, the doctrine of subrogation was applicable in this case.
In conclusion, the court found in favour of the appellant, allowing the appeal. The court determined that the insurance policy in question was a contingency policy and that the payment by consent judgment did not constitute a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. Therefore, the doctrine of subrogation applied, and the respondent was required to repay the $70,557.30 to the appellant.
The court examined the nature of the insurance policy and whether it was an indemnity policy or a contingency policy, which would determine the applicability of the doctrine of subrogation. It was established that the doctrine of subrogation could apply to both indemnity and contingency policies. The court further analysed the payment by consent judgment to determine if it constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. The court held that the payment by consent judgment did not fit either of these categories, and therefore, the doctrine of subrogation was applicable in this case.
In conclusion, the court found in favour of the appellant, allowing the appeal. The court determined that the insurance policy in question was a contingency policy and that the payment by consent judgment did not constitute a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. Therefore, the doctrine of subrogation applied, and the respondent was required to repay the $70,557.30 to the appellant.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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